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Interaction between Rules 89(C) and 70(F)

17. [...] If a Trial Chamber finds that the information has been provided in accordance with Rule 70(B), the information will benefit from the protections afforded under Rules 70(C) and (D).[1] However, the restrictions referred to under Rules 70(C) and (D) will only apply after the Trial Chamber has determined that the restrictions imposed by the government upon the witness’s testimony would not undermine the need to ensure a fair trial, and that the need to ensure a fair trial would not substantially outweigh the probative value of the testimony so as to lead to its exclusion.[2] Indeed, Rule 70(F) provides that Rule 70 restrictions shall not “affect a Trial Chamber’s power under Rule 89(C) to exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[3]

18. By conducting the balancing exercise under Rule 70(F), a Trial Chamber ensures that the government’s legitimate confidentiality concerns are respected, and, at the same time, that the conduct of the trial remains fair and expeditious. While according due weight to legitimate State concerns related to national security and the need for States to safeguard their interests,[4] the Appeals Chamber adopts the holding of the ICTY Appeals Chamber in the Milutinović et al. case that “this deference to States’ interests does not go as far as to supersede a Trial Chamber’s authority to maintain control over the fair and expeditious conduct of the trial”.[5]

22. With regard to whether the limitations placed upon Ambassador Flaten’s testimony under Condition B would have resulted in substantial unfairness such as to outweigh the probative value of his testimony, the Appeals Chamber makes the following observations. On 24 January 2007, the Trial Chamber observed that “[a]s the prospective witness is a Defence witness, the limitations on cross-examination do not impact the rights of the Accused.”[6] The Appeals Chamber recalls that Rule 70(E) is indeed aimed at ensuring that the right of an accused to challenge evidence presented by the Prosecution under Rules 70(C) and (D) remains unaffected and, therefore, finds no error in the Trial Chamber’s statement.

26. Lastly, the Appeals Chamber reiterates that pursuant to Rule 70(F), the Trial Chamber would have been able to exclude the evidence provided by Ambassador Flaten if it found – during the course of his testimony – that the application of Condition B unfairly limited the rights of the co-accused or the Prosecution. Rule 70(F) provides a safeguard against any undue prejudice that could be caused to the parties as a result of the limitations imposed by a State for the protection of the confidential information in its possession. The Appeals Chamber recalls in this regard that the public interest served in ensuring that information given in confidence to one of the parties remains confidential finds its limitation in the obligation imposed on this Tribunal by Articles 20 and 21 of the Statute to ensure a fair trial. In the present case, the Trial Chamber stressed on 24 January 2007 that “Rule 70(F) clearly preserves the Chamber’s power to apply Rule 89(C) and exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”[7] The Appeals Chamber finds that such a safeguard in the Rules means that the Trial Chamber would have retained authority over the proceedings even with Condition B applied. Indeed, if the Trial Chamber were to find that the application of Condition B had unfairly limited the rights of the co-accused or the Prosecution to confront the witness during his testimony, the ultimate remedy would be the exclusion of the evidence.[8]

[4] SeeProsecutor v. TihomirBlaškić, Case No 95-14-AR108bis, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 67; Seealso Milutinović et al. Decision, para. 18.

[5] Milutinović et al. Decision, para. 18.

[6]T. 24 January 2007, p. 46 (closed session).

[7]T. 24 January 2007, p. 47 (closed session).

[8] The same rationale was applied in several cases before ICTY Trial Chambers: Prosecutor v. Radoslav Brđanin and Momir Talić, Case No IT-99-36-T, Public Version of the Confidential Decision on the Alleged Illegality of Rule 70 of 6 May 2002, 23 May 2002, paras. 25 and 27; Prosecutor v.Milutinović et al., Case No IT-05-87-T, Decision on Prosecution Second Renewed Motion for Leave to Amend its Rule 65ter List to Add Michael Phillips and Shaun Byrnes, 12 March 2007, paras. 34 and 36; Prosecutor v. Slobodan Milošević, Case No IT-02-54-T, Decision on the Prosecution’s Motion to Grant Specific Protection Pursuant to Rule 70, confidential, 25 July 2002, para. 19; Slobodan Milošević Decision of 23 October 2002, para. 26. Incidentally, the Appeals Chamber notes that the Trial Chamber seized of the Bagosora et al. case granted a condition similar to Condition B for the appearance of a colonel serving in the French military, recalling that it retained authority to resolve any disputes as to the proper scope of questioning which might arise during the testimony: The Prosecutor v. Théoneste Bagosora et al., Case No ICTR-98-41-T, Modalities for Presentation of a Witness, 20 September 2006, para. 5 and Disposition.